from the Elkhart Superior Court The Honorable Charles Carter
Wicks, Judge Trial Court Cause No. 20D05-1809-PC-46
Attorneys for Appellant Nancy A. McCaslin McCaslin &
McCaslin Elkhart, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
Vaidik, Chief Judge.
In 2007, Pedro Rayo Zagal pled guilty to possession of
cocaine. More than ten years later, he filed a petition for
post-conviction relief alleging that his trial counsel was
ineffective for failing to advise him that his guilty plea
carried a risk of deportation, and the post-conviction court
denied him relief. Because Rayo Zagal admitted that the
advisements of rights at his initial hearing and in his plea
agreement informed him that he could be deported as a result
of his guilty plea and conviction and that he read these
advisements, we affirm the post-conviction court.
and Procedural History
Rayo Zagal came to the United States from Mexico in 1994,
when he was seven years old. Rayo Zagal is in the country
under the United States Department of Homeland Security's
Deferred Action for Childhood Arrivals (DACA) program.
On January 30, 2007, the State charged Rayo Zagal, then
nineteen years old, with Class D felony possession of
cocaine. At his February 2 initial hearing, Rayo signed an
Advisement of Rights and Penalties, which contained the
following advisement: "If you are an illegal alien you
may be deported if convicted of a crime."
Appellant's App. Vol. II p. 16.
In April 2007, the State and Rayo Zagal, who was represented
by counsel, entered into a written plea agreement. The
agreement stated that Rayo Zagal was born in Mexico and a
citizen of Mexico. Id. at 19. The agreement
contained a section entitled "Defendant's
Rights." Rayo Zagal wrote his initials next to the
The defendant understands that if he/she is not a legal
citizen of the United States, he/she may be deported as a
result of his/her plea of guilty.
Id. at 21. In addition, Rayo Zagal wrote his
initials next to the acknowledgments that he had
"received and read, or had read to him," the plea
agreement and that the plea agreement "was translated
into Spanish, my native language, before I signed it."
Id. at 20, 22. Both Rayo Zagal and his trial counsel
then signed the plea agreement.
At the guilty-plea hearing, Rayo Zagal acknowledged that he
read over the plea agreement "carefully,"
understood what he read, and initialed and signed it. Tr. pp.
4-5. The trial court noted that Rayo Zagal was born in Mexico
and a citizen of Mexico but was "completely fluent in
English." Tr. p. 12. The court took the plea under
advisement and set the matter for sentencing.
At the sentencing hearing in May 2007, the trial court
explained that given Rayo Zagal's age and immaturity, it
"was reluctant to hang a felony conviction on [him] at
this point." Id. at 22. The court told Rayo
Zagal that if he was willing to accept "certain
conditions," it was "willing to continue sentencing
for a while to give [him] a chance to maybe avoid a felony
conviction." Id. Rayo Zagal accepted the
conditions, including that he stay away from drugs and
alcohol, submit to chemical tests, ...